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May 9, 1994

AMERI-TEL, INC., Defendant.


The opinion of the court was delivered by: GEORGE M. MAROVICH

Pursuant to Fed. R. Civ. P. 56, Plaintiff MCI Telecommunications Corporation ("MCI") moves this court for summary judgment against Defendant Ameri-Tel, Inc. ("Ameri-Tel") on its claim that Ameri-Tel owes $ 124,064.84 for certain long-distance telephone services provided by MCI. Pursuant to the primary jurisdiction doctrine, Ameri-Tel contends that the Federal Communications Commission ("FCC") should have the first opportunity to review the issues presented by this suit. Ameri-Tel also argues that genuine issues of material fact exist that preclude summary judgment for MCI. For the following reasons, we will grant Plaintiff's motion for summary judgment.


 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, we must view the record and all inferences to be drawn in the light most favorable to the non-movant. Holland v. Jefferson Nat'l. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989); Beard v. Whitley County REMC, 840 F.2d 405, 409-410 (7th Cir. 1988). The movant bears the initial burden of showing with the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any" the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c).

 When faced with a motion for summary judgment, the non-movant may not rest upon the mere allegations or denials of its pleadings; instead, it must respond by setting forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 687 (7th Cir. 1991); Skagen v. Sears Roebuck & Co., 910 F.2d 1498, 1500 (7th Cir. 1990); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). The non-movant can only satisfy its burden by "affirmatively demonstrat[ing] that there is a genuine issue of material fact which requires trial." Anderson v. Liberty Lobby, 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Beard, 840 F.2d at 410.

 In this district, both the movant and non-movant are governed by strict rules concerning the setting forth of material facts. Local Rule 12(m) requires the movant to articulate precisely the "material facts as to which [it] contends there is no genuine issue . . . including . . . specific reference to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth . . . ." The non-movant must then file

a concise response to the movant's Rule 12(m) statement . . . including in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and . . . a statement . . . of any additional facts which require the denial of summary judgment, including reference to the affidavits, parts of the record, and other supporting materials relied upon. All material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party.

 Local Rule 12(n) (emphasis added). MCI has complied with Local Rule 12(m); however, Ameri-Tel has not submitted a response pursuant to Local Rule 12(n). The consequences of that failure are clear and we follow the long line of precedent that holds parties to the mandate of Local Rule 12. *fn1" As dictated by Local Rule 12(n), all of the properly supported facts set forth by MCI in its Rule 12(m) statement are deemed admitted by Ameri-Tel. The Court will not consider the additional facts offered by Ameri-Tel in its briefs or as exhibits to its briefs because it failed to file a Local Rule 12(n) statement.

 MCI, a Delaware corporation, is a provider of interstate telecommunications services to individual and corporate users. One of its corporate users was Ameri-Tel, an Illinois corporation owning and operating coin-operated pay telephones. Between December 1989 and January 26, 1991, MCI provided long-distance telephone service to Ameri-Tel pursuant to MCI F.C.C. Tariff No. 1 ("Tariff"), which was filed with the FCC in accordance with the Communications Act of 1934, 47 U.S.C. § 151 et seq. (1982) (the "Act"). On January 26, 1991, MCI discontinued servicing Ameri-Tel when it refused to pay for international calls placed on Ameri-Tel-operated telephones using MCI long-distance service.

 In August 1991, MCI filed an amended complaint, seeking collection under 47 U.S.C. § 203 (1982) of $ 38,622.71 for telecommunications services it provided for certain Ameri-Tel telephones, plus reasonable attorneys' fees and costs. On July 10, 1992, MCI filed a second amended complaint, demanding payment by Ameri-Tel of $ 128,923.84 for the long-distance services in question. In its Answer to MCI's second amended complaint, Ameri-Tel listed six accounts charged by MCI that it maintained were not operated under any agreement or contract with MCI. The charges attributable to those accounts totaled $ 4,859.00. For the purposes of this motion, MCI does not dispute these charges and has deleted the amount from its claim, leaving the total claim for unpaid services at $ 124,064.84 plus attorneys' fees and costs.

 Ameri-Tel defends its refusal to pay by relying on an arrangement it allegedly reached with Illinois Bell, MCI's billing agent, to block certain international direct dialed calls after June 1, 1990. Ameri-Tel claims to have taken advantage of call-blocking provided through a revision of an Illinois Bell tariff. Mervyn Dukatt, President and sole Executive Officer of Ameri-Tel, admits that he never discussed any international call-blocking arrangements with any MCI representative. Dukatt further admitted he was unaware of any factual basis for Ameri-Tel's affirmative defense that MCI should have blocked the calls in question by virtue of "transmission agreements" with Illinois Bell.


 Our analysis of MCI's motion for summary judgment is two-fold. Initially, the Court must determine whether there are issues which should first be decided by the FCC under the doctrine of primary jurisdiction. Only if this threshold inquiry suggests the inapplicability of primary jurisdiction to this case can this Court then decide MCI's motion on its merits.

 Primary Jurisdiction

 The Supreme Court cogently explained the doctrine of primary jurisdiction in U.S. v. Western Pac. R.R. Co., 352 U.S. 59, 63-64, 1 L. Ed. 2d 126, 77 S. Ct. 161 (1956):

The doctrine of primary jurisdiction . . . is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. . . . Primary jurisdiction . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.

 Because of the nature of the doctrine and the variety of situations in which it might apply, there is no fixed standard or formula for its application. Id. at 64.

 Instead, a court should consider whether application of the doctrine would promote uniformity in statutory or regulatory construction and involve the use of the agency's special expertise and procedural flexibility and whether complex policy determinations are at issue. Id. at 64-67. As the Court explained, "in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over." Id. at 64; see also Ryan v. Chemlawn Corp., 935 F.2d 129, 131 (7th Cir. 1991). Finally, we note that "primary jurisdiction serves judicial economy because the dispute may be decided within the agency, thus obviating the need for the courts to intervene." Id. (citing Christian v. New York State Dept. of Labor, 414 U.S. 614, 622, 39 L. Ed. 2d 38, 94 S. Ct. 747 (1974)).

 Several courts have gone a step further in distilling the primary jurisdiction doctrine. While continuing to recognize that no set formula exists for applying it, they list four factors generally considered by the courts when ...

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